Botna Valley State Bank v. Cary

— The judgment in this casé was entered September 16, 1927. The appeal was perfected October 18, 1927. The abstract was filed in this court February 23, 1928. A motion is filed to affirm or dismiss on the ground that the abstract was not filed in time.

The statute, Section 12848, Code of 1927, provides that, if the abstract is not filed within 120 days after the appeal is taken and perfected, unless further time is fixed by the court or judge, upon a proper showing the appeal “upon motion shall be dismissed, or the judgment or order affirmed.” When the time is computed, under the statute, it appears that the abstract was not filed in this court within 120 days after the appeal was taken and perfected.

The appellant contends that this provision of the statute is not applicable, by reason of the fact that the attorney for the appellees accepted “due, legal, and timely service” of the abstract. This acceptance was not until after the 120 days had run; but the appellant contends that by such acceptance of service and the use of the word “timely” the provisions of the statute regarding the filing of the abstract are obviated.

Such is not the case. The statute provides for the filing of the abstract within 120 days, not for the service of the abstract. Even if the service of the abstract may be regarded as “timely,” the filing was not, and the matter of filing is controlled by the statute. The only way that the express provisions of the statute requiring the filing of the abstract to be within 120 days can be avoided is by procuring an extension of time from this court, or a judge thereof. This not having been done, the motion to dismiss must be, and it is, sustained. — Motion to dismiss sustamed.